Border counsel

The European elections are fewer than 100 days away, on 22 May. I fear that much of the campaign will be on the in-out issue, dealing with fears raised by UKIP. In time for you to make up your mind as a lawyer, I thought I would concentrate on lawyers’ issues, which are unlikely to feature in the broad-brush political mud-slinging to come.

This guide aims to help you decide between a pro- or anti-European approach.

The EU has undertaken substantive work in the field of justice over the last few years, and is promising more in the years ahead. I am not speaking about the solid achievement of the free movement of European lawyers, which has so benefited English law firms. That was legislated a decade and more ago, although it is currently being reviewed. Rather, I mean the EU’s work in promoting cross-border solutions of assistance to our clients. Space constraints do not give room to review past achievements.

Instead, I will outline what we know is likely to be proposed after the elections (the list by implication also gives an idea about the kind of issues dealt with in the past). We can make an accurate guess of future initiatives, since the European Commission laid out its stall in recent discussion documents for a conference in Brussels at the end of last year. I will summarise briefly the main areas to be expected in civil and criminal justice through shortlists.

In civil justice, the following problem areas have been identified:

• disparities between national insolvency laws;
• a specific legal framework for cloud computing;
• a single set of insurance contract law rules (based on an optional approach);
• more work on service of documents;
• minimum standards as to when and how a child should be heard and how the child may be represented in court;
• minimum standards on enforcing judgments (such as temporary freezing of assets, transparency of debtor’s assets); and
• interconnection of registers of wills and insolvency proceedings, and the creation of electronic registers of European Certificates of Succession.

In criminal law, the following areas are likely to be tackled:

• stronger safeguards for victims (level of compensation awarded, legal aid);
• creation of victim funds composed of confiscated criminal assets;
• mediation and restorative justice; and
• common approaches to the liability of natural and legal persons, and statutory limitation.

You may be one of those who thinks that the EU should stop meddling in substantive law – even where it is cross-border, as here, to ease intra-EU dealings. If so, I will raise another of the EU’s strengths; its ability to engage in collective work which nation states cannot perform on their own, as a result of the globalising trends of trade and technology (I omit climate, because it has less impact specifically on lawyers as a group).

I shall concentrate mainly on technology. This list is taken from current EU activities, likely to continue after the elections. There are huge issues which affect our daily practice:

• Cloud computing – the EU is working on issues around a European cloud, subject to European data protection standards, including an expert group (with lawyer members) on cloud computing contracts.
• Mass surveillance of data – the European parliament is attempting to set standards for governmental spying on citizens, including protection for professional secrecy.
• Unfair practices of the technology giants – the EU has had powerful struggles with Microsoft and Google to bring about fairer practices, and is now looking at their tax avoidance schemes.
• Internet governance – the EU is trying to ensure a multilateral approach without US dominance.

On the trade side, the EU is negotiating the biggest ever trade deal with the US (the Transatlantic Trade and Investment Partnership), which could bring solid benefits to English law firms through freeing up the US legal services market.

I was delighted to see that the balance of competence reports recently published by the UK government, as part of the background before the promised in-out referendum, supported our continuing membership of the EU. The reports announced, among many benefits, that the total value of the UK’s exports to the EU over the past decade has increased from £130bn to £240bn. They noted that the balance of competence for the free movement of goods and intellectual property works in the UK’s interests.

If you think that the UK government can tackle on its own the cross-border legal obstacles faced by our clients, or the overwhelming technology issues just mentioned, or negotiate for itself a better trade deal with the US, then I profoundly disagree with you.

As a result, whether left or right, I urge you to vote for candidates in the European elections who will help to resolve some of the important professional issues I have outlined.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs